In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Tuesday, 25 July 2017

District Judge Brian M. Cogan from the
Eastern District of New York granted on July 19 the motion to dismiss of the
author of an Ethiopian cookbook, who had been sued for copyright infringement
by the author of another Ethiopian cookbook. The case is Schleifer
v. Berns, 1:17-cv-01649.

Plaintiff had published in 2007 a cookbook
of vegetarian Ethiopian recipes. A second edition was published in 2016.
Plaintiff registered the work with the Copyright Office in December 2016. The
two editions of the book, however, are not similar, as the book published in
2007 was done using a word processing program and its binding was a plastic
spiral. Judge Cogan even found that it “is
hardly even a book; it is closer to a pamphlet.” The book published in 2016
is done in a more professional way, but the two books are different in number
of pages and recipes. Plaintiff claims the two versions are identical.

Defendant published a cookbook of vegan
Ethiopian recipes in 2015. Plaintiff filed a copyright infringement suit
against her, who moved to dismiss.

No substantial
similarities between the two works

The elements of a copyright infringement
claim are (1) ownership of a valid copyright and (2) copying of constituent
elements of the work that are original, Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
at 361. If plaintiff is not able to provide direct evidence of copying, he must
show that defendant had access to the original work and that there are
substantial similarities of material which can be protected by copyright in the
two works. Ideas are not protected by copyright and so copying an idea is not
copyright infringement.

Judge Cogan evaluated whether there was
substantial similarities between the two cookbooks, as such a review is allowed
at the pleadings stage on a motion to dismiss. In the Second Circuit, the
standard test for substantial similarity between two works is “whether an ordinary observer, unless he set
out to detect the disparities, would be disposed to overlook them, and regard
[the] aesthetic appeal as the same,” Yurman Design, Inc. v. PAJ, Inc., at
111.

However, if the original work incorporates
elements which are in the public domain, then the court must undertake “a more refined analysis” and look for “substantial similarity between those
elements, and only those elements, that provide copyrightability to the
allegedly infringed [work],” Boisson v.
Banian, Ltd., at 272.

In our case, Plaintiff failed to show that
there were such substantial similarities. Judge Cogan used a table to compare
elements of both works (see p. 7). He found that the common words used in both
books to describe Ethiopian foods, ingredients, or culinary traditions were not
protectable by copyright.

“To the extent the two works have general similarities – including
the fact that both are about vegetarian or vegan Ethiopian cuisine, the
inclusion of illustrations of prepared dishes, and descriptions of foods as
spicy, spongy, or the like – these elements simply do not amount to a claim for
copyright violation.Instead, they are
“scènes à faire,” or “unprotectible elements that follow naturally from [the]
work’s theme rather than from [the] author’s creativity.”MyWebGrocer, LLC v. Hometown Info, Inc., 375 F.3d 190, 194 (2d Cir. 2004).”

Not
an original compilation either

A compilation of facts which are not
protected by copyright can by protected “if
it features an original selection or arrangement of facts, so that the
selection or arrangement possesses at least some minimal degree of creativity,”
MyWebGrocer at 193.

However,
Judge Cogan found both books to be “substantially
dissimilar.” He noted that Defendant’s cookbook contained “ more than 185 pages of content, including
cultural history, ingredients lists, shopping lists, over 140 recipes, and over
two-dozen pages of photographs and illustrations” while Plaintiff’s 2007
cookbook contained “ only 46 numbered
pages, including 12 recipes, six pages of commentary, a three-page interview,
and nine pages of black-and-white photographs.”

Judge Cogan also found the “total concept
and feel” of the two books to be distinct. As “the abstract similarities that “follow naturally” from the works’
common theme of vegetarian Ethiopian cooking are not protectable” (Lapine v. Seinfeld, at 83 (2d Cir.
2010)), the two works were not similar. In Lapine,
the two books were explaining how to incorporate pureed vegetables into recipes.

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